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Divided and Reunited by The Law – The Surinder Singh Route to Obtaining a Spouse Visa | Immigration

Reuinted by The Law

Divided and Reunited by The Law –

The Surinder Singh Route to Obtaining a Spouse Visa | Immigration

Moving to live and work in another country is an enormous undertaking and can be a real step into the unknown for anyone, so the love and support of your partner and family is vital as a means of comfort for those thinking of relocating to pastures new.

Having said that, the tightening of the Immigration Rules in July 2012 has led to a situation where many people find themselves separated and even isolated from their families while trying to adapt to a whole new work and cultural environment. Is this really what we want in terms of encouraging a settled, happy and productive skilled workforce from abroad?  I have written previously about the spouse visa rules here and hopefully this blog will provide some hope to those who find themselves separated from their loved ones due to the high (often impossible) financial threshold which must be met to sponsor a partner and children to come and live with you permanently in the UK.

This blog will briefly recap the current requirements if you wish to bring your partner into the UK in order to reside with you permanently and I will also tell you what the financial requirements are.   After what may initially appear rather bleak reading for anyone wanting to be reunited with their partner after immigrating to the UK, as you read on, you will discover that there is light at the end of the tunnel in the form of a ‘right of free movement’ enshrined in EU law. The UK, under section 3(2) of the European Communities Act 1972, must also abide by this principle of EU Law. This right of free movement can allow couples to by-pass the financial requirements under the UK Immigration Rules.

Let’s start at the beginning, so you have a clear understanding of what the current UK law is.

How is the Term ‘Partner’ Defined in British Immigration Law?

Under the Immigration Rules, a partner is defined as a spouse or a civil partner (for same sex couples) or an unmarried couple who have lived together as a couple for more than two years.

The Rules For British Citizens Wishing To Bring Their Partners From Abroad

The rules about bringing partners or family members over to join a British citizen (or a person settled in the UK) are governed by the Immigration Rules appendix FM.

To put it simply, if you wish to sponsor a non-EEA partner to come and live in the UK, you need to show you have a gross annual income of £18,600 or more.  If your partner is bringing a child with them, the income requirement will be raised to £22,400 for one child and a further £2,400 will be required for each additional child.

It is important to note that your partner’s earning in the country they currently reside in will not count towards this figure.  Savings, however, can be taken into account but any shortfall from the income threshold must be multiplied by 2.5 and added to the sum of £16,000.00.

Confused? Let me explain with an example:

If the  partner who holds British citizenship (or is settled in the UK) has an annual gross income of £14,000, then for the other partner to join them in the UK, a shortfall of £4,600 multiplied by 2.5 (£11,500) must be added to the ‘base’ amount of £16,000.  Therefore, the couple would need to provide evidence of savings of a total of £27,600.

These requirements have been viewed as draconian by many commentators and the government has been accused of tearing families apart by introducing such a harsh financial requirement.  After all, according to research, 47% of British citizens would not qualify to sponsor a partner under the existing rules.

The long awaited Court of Appeal decision of R (MM and Others) v The Secretary of State for the Home Department [2014] was handed down last week upholding the £18,600 threshold.  This will come as a huge blow to the 3,641 families who had their visa applications on hold pending this decision as many, if not most, are now likely to have their applications denied.

shutterstock_195640631The Surinder Singh Route

British citizens who want to find a way around the rules outlined in appendix FM have increasingly come to rely on the EU Family Route or, as it is commonly known, the Surinder Singh Route.  The name comes from the European Court of Justice ruling in the case of R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department [1992].

Briefly, the facts of this case are as follows:

Mr Singh was a citizen of India who worked for many years in Germany with his wife who was a British citizen.  When they returned to the UK, the couple divorced. The UK Immigration authorities decided to cut short his limited leave to remain and asked him to leave the country.  Mr Singh challenged this decision in the UK Courts, who referred the matter to the European Court of Justice to decide whether Mr Singh had a right to remain in the UK under EU law.

The EU Court decided that Mr Singh was entitled to reside in the UK on the basis that his wife had exercised her right to free movement by working in Germany. This entitlement is an absolute right under the same rules that govern the EU right to free movement and as such overrides the domestic law of the UK.  To read a copy of these rules click here.

What are the Rules that Govern the EU Right to Free Movement?  

Under Directive 2004/38, an EU citizen has the right to reside in a member state for three months or more as long as they are studying, employed (or self-employed) or have enough resources and insurance to ensure that they will not need to access the welfare benefits of the country they have chosen to reside in.  If their family members are not EU citizens then they must apply for a residence permit which will be valid for five years and under certain conditions the death or separation or divorce from the EU spouse will not affect their ability to remain in their chosen country.

After that five year period ends, if they have lived in their chosen country continuously, both the EU citizen and their family members acquire full citizenship.

Now for the exciting bit!

How to Circumvent Appendix FM via the Surinder Singh Route

The Singh Route has been incorporated into UK law by regulation 9 of the Immigration (European Economic Area) Regulations 2006.  It states that three conditions must be met if the family member wishes to return to the UK with their British partner (or parent etc).

The conditions are as follows:

a)      The British citizen was employed or self-employed in the EEA State he or she resided in;

b)      If the family member of the British citizen is their partner, the parties must have been living together in the EEA State or entered into a marriage or civil partnership before the British citizen returned to the UK; and

c)      The centre of the British citizen’s life has transferred to the EEA State where they lived and worked.

The ‘centre of life’ clause causes the most confusion among applicants as there is an obvious conflict in whether this test is a subjective or an objective one.  There is no set time limit required for living in the host country, however, the Home Office does acknowledge that the longer a person has resided in the EEA State, the more likely it is that their centre of life has shifted there.

Factors such as whether the British citizen and their partner have had children in the host member country and those children attend school there, whether other family members reside in the EEA State and whether the British citizen has immersed themselves in the language and culture of the country they have been residing, in will be considered upon application under regulation 9.

However, in March this year, the judgment of O v The Netherlands added a ‘fly to the ointment’ that is UK Immigration Law.  This case set a minimum   period of residence in the host country of ‘three months or more’ and also imposed a requirement that during the period of residence, the concept of family life must have been “created or strengthened”.

You will note that the creation or strengthening of the ‘family life requirement threshold’ is a great deal more generous than the ‘centre of life’ requirement under current UK regulations, which may be harder to prove.

Your Human Rights and the Future

We must now wait for further case law or the Home Office to give guidance to how the judgment of O v The Netherlands will be reconciled with the principals contained in regulation 9 of the Immigration (European Economic Area) Regulations 2006.

Given that the Court of Appeal has upheld the Home Office’s appeal in the case of R (MM & Others) v Secretary of State for the Home Department [2014] what will happen next? It is likely that a further appeal to the Supreme Court will be applied for.  Watch this space!

If you wish to find out more about immigration law then please click hereor phone us on 020 3588 3500 to talk to one of our multi-lingual, friendly lawyers.

Tell us about your experience if you have tried to bring your family to the UK?  Have you used the Surinder Singh Route?  We would love to hear your comments, as would our readers.

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